Ahmed Abou-el-Wafa; Professor of General International Law, Faculty of Law, Cairo University.
First: General introduction
Islamic law (Sharī‘ah) has granted human rights significant attention, as an essential requisite for the continuation of human life in Islamic society, and elsewhere. In fact, some differences may exist between one religion and another, or one legal system and another, just as there are many aspects of agreement; given that each adopts a distinct direction.
Second: The fundamental premise in Islam is not to be bound by any international convention that conflicts with higher Islamic norms (Islamic jus cogens).
In fact, there are many established norms in Islamic law, which are accepted as inviolable (equivalent to what is currently known, in the jurisprudence of international law as ‘jus cogens’. The 1969CE Vienna Convention on the Law of Treaties stipulates that any treaty conflicting with ‘jus cogens’ is void; moreover, that a treaty lapses, if any peremptory norm conflicting with it appears even after it is ratified).
‘Jus cogens’ in Islam originates from two principal sources, namely:
- The Qur’ān and the Sunnah.
- or consensus (ijmā‘) that a particular issue may not, under any circumstances, be contravened.
No doubt that any peremptory norm in Islam has the necessary effect of negating being bound by any international treaty at variance with that norm.
It is enough for us to mention here the saying of the Prophet, peace and blessings upon him:
- “Any condition that is not stipulated in the Book of Allāh is invalid, even if it was a hundred conditions”.
- “Reconciliation is allowed among the Muslims, except for reconciliation that makes the unlawful lawful, or the lawful unlawful”.
That was why the Prophet, peace and blessings upon him, in the time of the Treaty of al-Ḥudaybiyah, said: “By Him who has my soul in His Hand, they (the non-Muslim Arabs) will not make me an offer that would glorify the sanctities of Allāh, except that I will accept it”.
Accordingly, we can conclude, from the Islamic jurisprudence (fiqh) point of view, that the higher Islamic norms (jus cogens) are related to the Islamic public order.
The above is affirmed and reinforced by the Islamic legal maxim: “Whatever is established by Islamic law takes precedence (in application) over what is established by condition”. If the object of the contract is stipulated as a condition, this does not affect it negatively or positively, because “the object of the contract is understood to exist by grant of the legislator, and not the condition”.
The outcome of the foregoing is that, in Islam, the higher Islamic norms (jus cogens) are the rule and standard to judge the validity of any international treaty. Thus, the latter is amended according to the former (and not the other way around), or ruled to have lapsed if it contravened the former. Indeed, it is well established that for an action to be correct, “it must conform to Islamic law, in form and substance”.
This is also confirmed in the Qur’ān: “So woe to those who write something down with their own hands and then claim, ‘This is from Allāh,’ in order to make some paltry gain. Woe to them for what their hands have written! Woe to them for what they have earned!” (Sūrat al-Baqarah 79). Imām Al-Qurṭubī writes: “In this verse… there is warning against substitution, change and addition in Islamic law; so anyone, who substitutes, alters, or innovates in the religion of Allāh, by introducing things that are alien to it and not permitted by it, is included in this stern admonition”.
Third: The 1979CE Convention on the Elimination of All Forms of Discrimination against Women:
Here we point to Islam's attention to women’s rights, and subsequently, Islam's position on the 1979CE Convention.
(A) Islam's attention to the rights of women:
- It is well known that the legal state of women – prior to the advent of Islam - was dire: Roman law considered her a mere object. She lacked legal capacity or independent identity. Likewise, the woman, prior to Islam, was a “dishonour” to her family, and men had to get rid of females by burying them alive at birth (female infanticide). The Qur’ān recounts: “When one of them is given the good news of a baby girl, his face darkens and he is furious. In his shame, he hides away from people because of the evil of the good news he has been given. Should he keep her and suffer contempt, or bury her in the earth? What an evil judgement they make!” (al-Naḥl: 58-59).
Further, Allāh says: “when the baby girl buried alive is asked for what sin was she was killed” (Sūrat al-Takwīr 8-9); also: “Do not kill your children for fear of poverty. We shall provide for them and for you; indeed, killing them is a terrible mistake” (Sūrat al-Isrā’ 31).
Therefore, it was natural that Islam would not deny women their rights, rather it acted to achieve parity between men and women. This is borne out in many verses of the Qur’ān, including:
- “Anyone who acts rightly, male or female, being a believer, We (Allāh) shall grant them a good life, and reward them according to the best of their deeds” (Sūrat al-Naḥl 97).
- “Anyone, male or female, who does good deeds and is a believer, will enter Paradise and will not be wronged by as much as the tiniest speck” (Sūrat al-Nisā’ 124).
- “… men have the portion they have earned; and women the portion they have earned…” (Sūrat al-Nisā’ 32).
- “A woman and a man who commit fornication: flog both of them one hundred lashes…” (Sūrat al-Nūr 2).
- “Cut off the hands of thieves, whether they are man or woman, as punishment for what they have done– a deterrent from Allāh…” (Sūrat al-Mā’idah 38).
- “Their Lord responded to them: ‘I will not let the deeds of any doer among you to go to waste, male or female; you are both the same in that respect…” (Sūrat Āl-‘Imrān 195).
- “Mankind, We (Allāh) have created you all from a male and female, and made you into peoples and tribes so that you should become acquainted with each other…” (Sūrat al-Ḥujurāt 13).
- “O’ Prophet, when believing women come and pledge to you that they will not ascribe any partner to Allāh, nor steal, nor commit adultery, nor kill their children, nor lie about who has fathered their children, nor disobey you in any righteous thing, then accept their pledge and pray to Allāh to forgive them: Allāh is Ever-Forgiving, Most Merciful” (Sūrat al-Mumtaḥanah 12).
- The woman is owed the same as is required from her. This is summarised by the Qur’ān: “Women have [rights] similar to their [obligations] to be honoured with fairness, but men have a degree [of right] over them…” (Sūrat al-Baqarah 228). This noble verse sets forth the interrelationship between the rights and the obligations of the woman, in equal measure and without excess or negligence.
- Are there finer words than Allāh, the Almighty, saying: “And among His signs is that He created spouses from among yourselves for you to live with in tranquillity: And He ordained affection and compassion between you….” (Sūrat al-Rūm 21).
In Islam, women are deemed “sui juris” to enjoy full legal capacity and personality. A woman has the right to manage her own finances, and bring legal action before the courts. Her legal personality is independent of her husband, and she is responsible in Islamic law for her actions; as: “All of you are guardians, and all of you are responsible for your subjects…”.
In Western legal systems, this was the exact opposite . French women never enjoyed their independent personality prior to the 1965CE amendment (the 13 July 1965CE law), which stipulated under Article 216 of the Civil Code, that: “Chaque époux a la pleine capacité de droit”, that is: “Each spouse has the full legal capacity”.
Prior to that, however, the French wife was no more than a shadow of her husband. It is enough that she was not able to conclude an undertaking without her husband’s special permission. In short, the husband was everything in the family.
From the beginning, Islam recognised the full separation between a woman’s finances and her husband’s, and that each had independent financial responsibility. This was also recently acknowledged in Article 1536 of the French Civil Code. HRH Prince Charles, The Prince of Wales, delivered a speech at the Oxford Centre for Islamic Studies, Oxford University, in which he said:
“Another obvious Western prejudice is to judge the position of women in Islamic society by the extreme cases… The rights of Muslim women to property and inheritance, and to some protection if divorced, and to the conducting of business, were rights prescribed by the Qur'an 1,400 years ago… In Britain at least, some of these rights were novel even to my grandmother's generation!
“… Women are not automatically second-class citizens, because they live in Islamic countries…”.
Indeed, Islam’s holds the woman in higher regard than the man. In the renowned tradition, the Messenger, peace and blessings upon him, was asked: Who is more entitled to be treated with the best companionship by me? He said: “Your mother”. It was said: Who next? He said: “Your mother”. It was said: Who next? He said: “Your mother”. It was said: Who next? He said: “Your father” . He (peace and blessings upon him) mentioned the mother three times, and the father only once.
Perhaps, what we have cited above proves that the status of women in Islam in no way falls short of what modern societies have granted them; rather, it is greater in some aspects.
In this respect, Article 6 of the Cairo Declaration of Human Rights in Islam, which was adopted by the 19th Islamic Conference of the Foreign Ministers of the Organisation of Islamic Conference (Cairo 1411AH/1990CE), stated that:
(A) A woman is equal to a man in human dignity, and she possesses rights as much as she has duties. She has her own civil personality, independent financial status, and the right to retain her name and lineage.
(B) The man bears the burden of spending on the family, and is responsible for its care.
In reality, Islam considers that women have four duties to deliver: a duty to care and cater for the home: “… The woman is a guardian over her husband’s house and she is responsible for those in it…”; a duty of worship: “And stay at home, and do not flaunt your finery as they used to in the pagan past; establish the prayer (ṣalāh), give the prescribed alms (zakāh), and obey Allāh and His Messenger…” (Sūrat al-Aḥzāb 33); a knowledge duty based on:
“remember what is recited in your houses of Allāh’s revelation and wisdom” (Sūrat al-Aḥzāb 34); and a duty to direct female society: “The believers, both men and women, support each other; they command what is right and forbid what is wrong” (Sūrat al-Tawbah 71).
(B) Islam’s position on the 1979CE Convention on the Elimination of All Forms of Discrimination Against Women
On 18 December 1979CE, the United Nations General Assembly adopted the Convention to End all Forms of Discrimination against Women. Libya, however, expressed reservations on the Convention saying: this adoption must not contradict personal status laws as stipulated by Islamic law. Many Islamic countries also expressed reservations on some provisions in the Convention, such as Egypt , Iraq, Bangladesh, Bahrain and Saudi Arabia, on the basis that they must not conflict with Islamic law. Some other countries , such as Denmark, Finland, Germany and Norway objected to those reservations, claiming that a state should not cite its own national law to justify non-compliance with an international convention. Suffice here to mention Denmark’s objection to Libya, saying that: “Libya cannot plead its own national laws as an excuse for not endorsing an international convention”. Norway also objected in a similar manner.
The truth is these objections are unfounded, for the following reasons:
1- Muslim countries have the right to raise reservations to some provision of the convention, out of respect for Islamic law.
2- Many states have expressed reservations on the provisions of the convention, including Australia, Austria, Belgium, Brazil, Bulgaria, France, Germany, and Israel, based on their internal laws or religion:
- Belgium, for example, decided that applying Article 7 must not impair Article 69 of the Belgian constitution, which limits royal power to men only, or Article 58, which reserves to the King’s sons the power to take up positions in the House of Lords by the power of law from the age of 18, and the right to vote from the age of 25.
- Israel had reservations on Article 7 (B) to appoint women as judges in religious courts, because it is prohibited by the laws governing Jewish sects in Israel. Apart from that, the said Article applies to any practice by women in public life.
- Israel also had reservations on Article 16, to the effect that the personal status laws binding on the different religious sects in Israel did clashed with the Article.
3 - The Islamic countries are not obliged to adopt the said Convention. If they were to do so, then they would be more entitled to adopt the Convention with reservations, applying the maxim: “He who owns most, also owns less” or “the part is also included in the whole”. This is expressed by the rule: “In toto est pars continetur, Qui peut le plus peut le moins, He who can do more can do less”.
4 - Regarding other international conventions regulating women’s rights, such as the Convention on Political Rights of Women, concluded in New York on 31 March 1953CE, some countries expressed reservations. The same was true for the Convention on the Nationality of Married Women, concluded in New York on 20 February 1957CE. Why then are objections raised when Muslim countries express reservations citing Islamic law as obliging such reservations?
5 - Those who objected to the legitimate reservations of the Islamic countries, out of respect for the norms of Islamic law, stood as spectators before the rape of Muslim women in Bosnia and Herzegovina, and did nothing to stop the atrocities. A team of experts from the European Community estimated that the Serbs raped 20,000 Muslim women within the campaign of ethnic cleansing during the war that erupted following the collapse of the Yugoslav Union.
6 - The Convention aims to achieve an extremely serious matter, stating that: “… a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality of men and women”. There is no doubt that “this embodies a trespass on the nature of both men and women, and the many characteristics, and physical and psychological functions that have been firmly established within their contrasting natures, even if they are equal in humanity”.
7 - As previously pointed out, Islamic law granted women high status and full and unimpaired capacity; indeed, Islamic law decided that this ruling held true for non-Muslim women as well.
This is what Imām Aḥmad b. Ḥanbal said regarding taking Jewish or Christian wives alongside a Muslim one: “The free Jewish and Christian wife, in my view, has the same rights of the share of the husband’s time, and maintenance as the Muslim one”. Therefore, he must act with justice towards them: spending one day with the Muslim wife, and another day with the Jewish or the Christian wife.
We can, therefore, say with complete confidence that Islam has elevated the status of women and safeguarded their rights.
It is clear from the foregoing that Islamic law is in agreement with the vast majority of international conventions and agreements, and that in those few instances, where it conflicts with these conventions and agreements, Islamic countries have the right to refuse adopting them, by placing reservations on them, issuing interpretative statements regarding their application, or declaring non-adoption in the first place.
There are two reasons for this:
- The rules of “public order” have precedence, in application, in the legal systems of states, and this applies to Islamic countries.
- The reservations system is well-established in international treaty law.
However, we noted that many non-Muslim countries have objected to these reservations and interpretative statements, based on two basic arguments:
First: The general nature of the reservation, which casts - in the eyes of these countries - doubt over those Muslim countries will to fulfil their obligations as required by treaty, which undermines the basis of international treaty law.
In reality, this argument can be refuted to in two ways:
- The first: The purpose of generalising a reservation is to dismantle any association with a treaty that contradicts Islamic law in the first place. This is because if a Muslim state adopted a treaty on which it had expressed ‘specific’ rather than ‘general’ reservations, then what if after implementation, it transpires that provisions in the agreement contradict Islamic law? It follows that this Muslim state would be forced to discontinue applying the agreement. No doubt this matter is even more serious than expressing a ‘general reservation’; as indeed, it conflicts with the notion of ‘legal security’ that must be considered in any treaty relationship.
- The second is that: upon application, the reservation's ‘generality’ will become specific when the agreement or international document is applied to practical cases falling within its scope of application.
Second: Muslim countries must not rely on their internal laws to justify these reservations, and that these laws must be amended in order to be in line with international agreements and conventions relating to family.
This argument is also unacceptable, because non-Muslim countries do not take into consideration the self-evident truth that Muslim countries have no power to amend Islamic law; rather, they can only amend international laws, conventions and agreements that conflict with it.
Thus, non-Muslim countries must recognise that ‘contrasts’ between religions, civilisations, and cultures is something that must be respected.
 Reported by al-Bayhaqī in “Ma‘rifat al-sunnan wa al-āthār” (Discerning Prophetic practices and traditions) 10/235 (14337). Al-Ṭaḥāwī included it in “Sharḥ mushkil al- āthār” (Explication of conflicting traditions) 11/235. Al-Qurṭubī says: “His saying ‘not stipulated in the Book of Allāh’ means ‘it is not legislated in Allāh’s Book, neither textually evidenced nor detailed’”. Refer to Ibn Ḥajar al-‘Asqalānī: “Fatḥ al-bārī bi sharḥ Ṣaḥīḥ al-Bukhārī” (lit. Explication of Ṣaḥīḥ al-Bukhārī). Cairo: Dār al-Manār, p142.
 Reported by Abū Dāwūd 3/304 (3594) quoting the tradition (ḥadīth) narrated by Abū Hurayrah. Also, al-Tirmidhī 3/634 (1352), and Ibn Mājah 2/788 (2353); both reported the tradition (ḥadīth) narrated by ‘Amr b. ‘Awf al-Manzilī (may Allāh be pleased with him).
 Reported by al-Bukhārī 3/193, 195 (2731, 2732), from the tradition (ḥadīth) narrated by al-Miswar b. Makhramah (may Allāh be pleased with him). Ibn al-Ḥanbalī, “Kitāb aqyisat al-Nabīy al-Musṭafā Muḥammad (Book of Analogies of the Chosen Prophet Muḥammad)”, Cairo: Dār al-Kutub al-Ḥadīthah, 1393AH/1973CE, p.104. Al-Ghazālī also wrote that: “The classification of deeds into virtuous and ugly is not captured by intellectual means, but is the sole preserve of transmitted Islamic law. The virtuous for us is what Islamic law designated so, by commending it; the ugly is what it designated so, by sternly warning against, and criticising it”. Al-Ghazālī, “Al-Mankhūl min ta‘liqāt al-uṣūl (The sifted from the comments on the fundamentals of jurisprudence)”, Damascus: Dār al-Fikr, 1400AH/1980CE, pp.484-485.
 Refer to Dr Mohammed Talat al-Ghonaimi, “Al-Aḥkām al-‘āmmah fī qanūn al-umam (The General Rules in States’ Law)”, Alexandria: Mansha’at al-Ma‘ārif, 1970CE, pp.538-539. Dr Suliman Abdulmajid, “Al-Naẓariyyah al-‘āmmah li al-qawā‘id al-āmirah fī al-qanūn al-dawlī (General theory for peremptory norms in international law)”, PhD Thesis, Faculty of Law, Cairo University 1979, pp.92-95. Shaykh Mohammed Abu Zahrah, “Al-Milkiyyah wa naẓariyyat al-‘aqd fī al-sharī‘ah al-Islāmiyyah (Ownership and the theory of contract in Islamic law), p.272, clause 173. It is worth mentioning that the Jamaliyah Court decided that the Divine Right (ḥaqq Allāh) is “what is expressed in modern terms as the public order” (2725/46 on 28/2/1948CE).
 Al-Siyūṭī, “Al-Ashbāh wa al-naẓā’ir (lit. Resemblances and similitudes)”, Cairo: Maṭba‘at al-Bābī al-Ḥalabī, pp.149-150. It is, therefore, said: “… included in the reprehensible matters (munkarāt) are what Allāh and His Messenger have proscribed of unlawful contracts”. Ibn Qayyim al-Jawziyyah, “Al-Ṭuruq al-ḥukmiyyah fī al-siyāsah al-shar‘iyyah” (lit. Wise ways in Islamic governance), Cairo: al-Mu’asasah al-‘Arabiyyah li al-Ṭibā‘ah wa al-Nashr, 1380AH/1960CE, p.282.
Regarding the difference between the rule: “when ignorance is not a defence” and the rule “when ignorance is a defence”, al-Qarāfī says: “The rule for pardoned acts of ignorance is that the ignorance is unavoidable normally, while that which is not difficult to avoid is not pardoned”. Refer to “Al-Furūq (The Differences)” by al-Qarāfī, Difference no: 94, Vol. 2, p.150.
 Dr Fat’hi al-Durayni, “Al-Ḥaq wa madā sultān al-dawlah fī taqyīdih (Right and the extent of state authority to restrict it)”, Beirut: Mu’asasat al-Risālah, 1404AH/1984CE, p.85.
 Al-Qurṭubī, “Al-Jāmi‘ li aḥkām al-Qur’ān (lit. Compendium of Quranic rulings)”, Vol. 2, p.9. Also, see: Dr Hasan Ali al-Shadheli, “Naẓariyyat al-sharṭ fī al-fiqh al-Islāmī (Condition theory in Islamic jurisprudence)”, Cairo: Dār al-Itiḥād al-‘Arabī li al-Tibā‘ah, pp.611-614.
 Reported by al-Bukhārī, 2/5 (893), 7/26, 31 (5188, 5200), 9/26 (7138), and Muslim 3/1459 (1828), both reporting the (ḥadīth) narrated by Ibn ‘Umar (may Allāh be pleased with both).
 This was confirmed by another opinion, saying:
“Equality, which is at the basis of Western ideologies is problematic: there are very deep differences between man and woman, the healthy and the sick, the learned man and the ignorant, the Muslim and non-Muslim, so that we can talk about equality”, Yann Richard in: “l'Islam, le Monde dossiers et documents”, May 1979CE, p.1.
“L'égalité, qui est à la base des ideologies occidentales est problématique: il y a des differences trop profondes entre l'homme et la femme, le bien- protant et le malade, l'homme insttuit et l'ignor ant, le musulman et le non- muslulman, pour qu'on puisse parler d'égalité” Yann Richard in: “l'Islam, le Monde dossiers et documents”. Mai 1979, p.1.
 “Al-Bilād” newspaper 22/5/1414AH/ 6/11/1993CE. Garaudy states: “In the Qur’ān, a woman can dispose of her property as she wishes, which is a right that was not recognised in most western legislation, especially in France, until the nineteenth and twentieth centuries. In the Qur’ān, God gives the woman the right to ask for divorce, which women in the West did not obtain until thirteen centuries later”; see Dr Imaduddin Khalil, “Qālū ‘an al-Islām (What they said about Islam)”, Riyadh: World Assembly of Muslim Youth, 1412AH/1992CE, p.423. Leibniz wrote: “The Muslim woman has a legal position far superior than the English woman”, ibid, p.429. Gustave le Bon wrote: Islam is the religion that raised women from the miserable depths to which they were consigned, ibid, p.430.
It was also said: that Islam brought equality between men and women “unlike some western legal systems that equated between men and women in obligations only, and favoured the man in rights”, Qasim Amin: “Taḥrīr al-mar’ah (The Liberation of Women)”, Cairo: al-Hay’ah al-Miṣriyyah al-‘Āmmah li al-Kitāb, 1993CE, p.26.
 Reported by al-Bukhārī 8/2 (5971), and Muslim 4/1974 (2548), both quoting Abū Hurayrah (may Allāh be pleased with him).
 So it was said:
“… Muslim legislation, if it was wisely interpreted and fairly applied, could, without innovation, provide Muslim women in the family and in society with a situation at least equal to that of many of their Western sisters” (CF Abdel Fattah El- Sayed Bey: “De l'étendue des droit de la Femme dans le marriage musulman” (On the Extent of Women's Rights in Muslim Marriage)”, Dijon, 1922CE, p.271).
In Islamic jurisprudence (fiqh), the female is like the male in that legal incompetence is lifted when they reach the age of majority, and are allowed to dispose of their money; given the generality of the Qur’ān text: “Keep a close check on orphans until they reach the marriageable age; then if you find they have sound judgement hand over their property to them” (al-Nisā’: 6). Likewise, "The non-Muslim (dhimmi) woman is like as a Muslim woman in alimony, housing, and clothing" (Ibn Qudāmah, “al-Mughnī (lit. The sufficer)”, followed by “al-Sharḥ al-kabīr” (The grand commentary), Cairo: Dār al-Ḥadīth, 1416AH/1996 CE, part 6, p.234; part 7, p.216.
 Op. cit.
 Refer to the recommendations of the four global Islamic educational conferences, Makkah al-Mukarramah: Umm al-Qura University, 1403AH/1983CE, p.92 (Recommendations of the first conference).
The best commentary on this subject is by late Shaykh Ahmed Ibrahim: “Islam elevated the woman’s status to the position fitting her human dignity. It equated between her and man, her brother in legal capacity and obligations… out of gentleness, and for her preservation…” Refer to Shaykh Ahmed Ibrahim’s introduction to the book by Dr al-Saeed Mustafa al-Saeed: “Fī madā isti‘māl ḥuqūq al-zawjiyyah wa mā tataqayad bihī fī al-sharī‘ah al-Islāmiyyah wa al-qanūn al-Maṣrī (The extent to which marital rights are used and what they adhere to in Islamic law and Egyptian law)”, Cairo: Maṭba‘at al-I‘timād, p.letter dāl.
 This is a reflection of Article 11 of the 1971CE Egyptian Constitution, which stipulates achieving equality for women and men: “Without prejudice to the provisions of Islamic law”. The Egyptian reservation included the following:
“In respect of article 9:
Reservation to the text of article 9, paragraph 2, concerning the granting to women of equal rights with men with respect to the nationality of their children, without prejudice to the acquisition by a child born of a marriage of the nationality of his father. This is in order to prevent a child's acquisition of two nationalities, since this may be prejudicial to his father. It is clear that the child's acquisition of his father's nationality is the procedure most suitable for the child and that this does not infringe upon the principle of equality between men and women, since it is customary for a woman to agree, upon marring [sic.] an alien, that her children shall be of father's nationality.
“In respect of article 16
“Reservation to the text of article 16 concerning the equality of men and women in all matters relating to marriage and family relations during the marriage and upon its dissolution, without prejudice of the Islamic Sharia's provisions whereby women are accorded rights equivalent to those of their spouses so as to ensure a just balance between them. This is out of respect for the sacrosanct nature of the firm religious beliefs which govern material relations in Egypt and which may not be called in question and in view of the fact that one of the most important bases of these relations is an equivalency of rights and duties so as to ensure complementary which guarantees true equality between the spouses. The provisions of the Sharia lay down that the husband shall pay bridal money to the wife and maintain her fully and shall also make a payment to her upon divorce, whereas the wife retains full rights over her property and is not obliged to spend anything on her keep. The Sharia therefore restricts the wife's rights to divorce by making it contingent on a judge's ruling, whereas no such restriction is laid down in the case of the husband” Multilateral treaties…., op. cit, p.241.
 Denmark objected to Libya’s reservations, as follows:
“A reservation by which a state party limits its responsibilities under the convention by invoking religious law (Shariah), which is subject to interpretation, modification, and selective application in different states adhering to Islamic principles, may create doubts about the commitments of the conventions. It may also undermine the basis of international treaty law. All states have common interest in securing that all parties respect treaties to which they have chosen to become parties”.
Refer to: Ibid, op. cit., pp.240 et ss.
Moreover, the French objected to the Saudi reservation as follows:
“By stating that in case of contradiction between any term of the convention and the norms of Islamic law, it is not under obligation to observe the terms of the provisions of the Convention are affected or might be affected in future. The provisions of the Convention completely and therefore objects to it. The second reservation concerning article 9, paragraph 2, rules out equality of rights between men and women with respect to the nationality of their children and the Government of the French Republic therefore objects to it”, ibid, p.255.
 An opinion resolves that:
“Sometimes, however, religion and positive international law are anything but congruent. They may even be in conflict. For example, … prescriptions to protect the rights of women, such as those that were developed and codified in the convention on the elimination of all forms of discrimination against women, have been rejected by some Islamic traditions” cf, J. Nafziger: The function of religion in the international legal system in “The influence of religion on the development of international law”, ed. by M. W. Jans, Dordrecht, the Netherlands: Martinus Nijhoff, 1991CE, p.151.
This view, in reality, cannot be accepted, because as we said earlier, Islam secured a prominent position for women, fourteen centuries ago.
 Refer to: Multilateral treaties, op. cit., p.242.
 Ibid, pp.242-243. It is obvious that Israel based its reservations on religious grounds, so will the countries, which objected to Muslim countries basing their reservations on religious grounds, object to Israel’s reservation too… we do not expect so!!
For example, Britain expressed reservations on Article 3 relating to the following:
(a) Succession to the Crown;
(b) certain offices primarily of a ceremonial nature;
(c) the function of sitting and voting in the House of Lords pertaining to holders of certain offices in the Church of England;
(d) recruitment to and conditions of service in the armed forces;
(e) jury service in Grenada, the Isle of Man and Montserrat, as well as in kingdom of Tonga;
(f) remuneration for women in the Civil service of Gibraltar and Hong Kong as well as of the protectorate of Swaziland
(g) the post of Bailiff in Guernsey;
(See: ibid, pp.616-617)
 It suffices to mention here Uruguay’s reservation on Article 3 of the Convention, which states that the constitution does not allow the granting of citizenship to a foreigner unless he is a son of an:
“Uruguayan father or mother, in which case he may become a natural citizen. This case, apart, an alien who fulfils the constitutionality and legal conditions may be granted only legal citizenship, and not nationality” (ibid, p.621).
In all countries, there is a distinction, with respect to some rights, between men and women. Thus, upon signing the International Covenant on Economic, Social and Cultural Rights (1966CE), Britain announced that Article 7/A/T, which provides for equal pay for men and women for equal work, will cease to apply because:
“The problems of implementation are such that complete application cannot be guaranteed at present” cf. Human rights- Status of international instruments, UN, New York, 1987CE, p.16.
 “Asharq Al-Awsat” newspaper 9/11/1993CE. The Economic and Social Council report on human rights in the former Yugoslavia, disclosed the following:
“Rape of women, including minors, has occurred on a large scale. While the team of experts has found victims among all ethnic groups involved in the conflict, the majority of rapes that they (the team of experts) have documented had been committed by Serb forces against Muslim women from Bosnia and Herzegovina (E/CN.4/1993/50, 10 February 1993CE, p.19, para. 84).
This is a violation of Article 27/4 of the 1949CE Fourth Geneva Convention, which states that: “Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault”.
Therefore, according to Article 147, rape is considered grave violation of the Convention and a war crime (Additional Protocol I)
“Report of the European Community investigative Commission into the treatment of Muslim women in the former Yugoslavia” (S/25240, annex).
Note also, UN General Assembly Resolutions 48/143 and 49/205, passed in 1993CE and 1994CE, respectively, about the large scale rape of Muslim women and children by Serbs in Bosnia Herzegovina.
 Grand Imam Sheikh Gad al-Haq Ali Gad al-Haq, “On the Convention on the Elimination of All Forms of Discrimination against Women from an Islamic perspective”, Al-Azhar, Safar 1416AH/July 1995CE, pp.3-4.
 Refer to Imām Abū Bakr al-Khallāl: “Aḥkām ahl al-milal (Rulings relating to followers of other religions)”, Beirut: Dār al-Kutub al-‘Ilmiyyah, 1414AH/1994CE, p.169 onwards. Among the misconceptions that some raise regarding the treatment of women in Islamic laws, is that the purpose is to keep her in a state of complete subjugation and unquestioning obedience.
“This treatment of women under state laws is designed to make them submissive and obedient” cf, Howland: “The challenge of religious fundamentalism to the liberty and equality rights of women”, Columbia: J. of trans. L., 1997CE, vol. 35, p.316.
We would like to mention here an excellent interpretation, which the Administrative Court adopted, in stating: “Since the right to work is equally guaranteed in Islamic law for men and women, to preserve the economic dignity of both, but on condition that it is honourable work, and that they are able to do this work, and it is appropriate; furthermore, that the intent is good and no evil results; applying the words of Allāh, the Almighty: “Anyone who acts rightly, male or female, being a believer, We (Allāh) shall grant a good life and reward them according to the best of their deeds” (Sūrat al-Naḥl 97). Therefore it is permissible for a Muslim woman, to take up any honourable profession, inside or outside the house, provided she adheres to the etiquettes prescribed by Islamic law. (Refer to the Ruling in: “Hay’at Qaḍayā al-Dawlah” Gazette, year 43, issue 3, 1999CE, p.159).
 Pierre Crabitès says:
“Muhammad was probably the greatest champion of woman's rights the world has ever seen. Islam conferred upon the Muslim wife property rights and juridical status exactly the same as that of her husband. She is free to dispose of and manage her financial assets as she pleases, without let or hindrance from her husband”.
This was cited in:
Kashmiri, “Prophet of Islam Muhammed and some of his traditions”, Cairo: Supreme Council for Islamic Affairs, p.42.
Another view says:
“Women before Islam were divested of all rights, as though they were beings without souls. Even in the sixties of this century in the province of Quebec, Canada, the husband could sell his wife's property without her knowledge nor with a power of attorney”.
Abu-Shabanah, “A favourable aspect of the Qur'an in honouring the women”, Cairo: Supreme Council for Islamic Affairs, 1420AH/1999CE, p.12.
We also said that: “Islam urges believers to treat their wives with kindness, respect, compassion, affection ,and mercy”; Ahmed Abou-el-Wafa, “Islam and the West: Coexistence or Clash”, Cairo: Dār al-Nahḍah al-‘Arabiyyah, 1426AH/2006CE, p.205.
 Unfortunately, in Ontario, a decision was made to stop arbitration based on Islamic law among Muslims in matters of family and personal status. No doubt that this is destructive to the Islamic identity of the Muslim minority there; see also:
D. Brown, “A destruction of Muslim identity: Ontario's decision to stop Shari'a-based arbitration”, North Carolina Journal of International Law and Commercial Regulation, vol. 32, 2007CE, pp.455-456.
This article is part of the book; The Objectives of Sharīʿah and the International Conventions, translated into English;
The Objectives of Sharīʿah and the International Conventions, Al-Furqān Islamic Heritage Foundation, 2013, London, UK, p 399-416.
Please note that some of the images used in this online version of this article might not be part of the published version of this article within the respective book.